Restraining orders fail to meet burden of proof | BrainerdDispatch.com | Brainerd, Minnesota

Restraining orders fail to meet burden of proof

Connections to the allegations of voter fraud last fall

Posted: March 30, 2011 - 8:32pm

Two petitions seeking harassment restraining orders, with a connection to the allegations of voter fraud last fall, did not have a legal basis to continue, a Crow Wing County District Court judge found Wednesday.
That was the decision during nearly three hours of court proceedings, testimony and voice mail recordings before Judge Earl E. Maus.

At issue was whether a single voice mail - left following an allegation of voter fraud in Crow Wing County - met the burden of proof for harassment. The court case had one petitioner in tears and a dispute as to whether a sound on a voice mail was that of a gun being cocked.

Maus said the court can infer there was a misunderstanding but there was no basis in law for the restraining order, which comes after a pattern of behavior and not a single instance.

Maus listened to the voice mail recording twice, getting copies of the call from Brook Mallak, Baxter attorney representing Lynn Peterson, owner of Clark Lake Homes, and from petitioner Ron Kaus, who represented himself.

Clark Lake Homes serves residents with disabilities. A second petition for a harassment restraining order against Peterson was made on behalf of James Stene by his parents Alan and Sharon Stene.
James Stene was one of the Clark Lake Homes residents who voted at the Crow Wing County Historic Courthouse in the general election in November. The voice mail in evidence was from a call made by Peterson to Alan and Sharon Stene.

In November, Montgomery Jensen of Crow Wing Township filed a complaint with Crow Wing County attorney Don Ryan's office saying he witnessed what appeared to be staff members from a group home filling out a client's ballot and verbally instructing a client who to vote for during absentee balloting. Allegations of the voter fraud went online, including a YouTube video. After an investigation, Ryan said he didn't have evidence to charge anyone for voter assistance fraud.

Kaus said he wasn't named in the voice mail but the Minnesota Freedom Council was mentioned. Kaus interviewed Jensen and put up a video on the Internet in his role as a Minnesota Freedom Council volunteer. After the video, Kaus said Peterson contacted his former boss to say he didn't want Kaus to service office equipment at Clark Lake Homes. Kaus worked for The Office Shop, owned by Scott Johnson.

Peterson testified after the allegation of voter fraud, Kaus showed up unannounced at Clark Lake Homes without being called for a service need. Peterson said after the video he has concerns for confidentiality at his business and asked The Office Shop owner, who is a personal friend, not to send Kaus in the future.

Johnson testified that request was honored and Kaus did not have any reduction in pay or hours as a result. Johnson said with other service personnel, there wasn't a problem with sending a different technician.
The voice mail recorded Peterson talking about the voter fraud allegation, mentioning the Minnesota Freedom Council and saying his organization provided transportation to residents who wanted to vote.

In the voice mail left for the Stenes, Peterson said he was coming for them and they better hang on. Kaus and Sharon Stene told the court they heard the sound of a gun being cocked near the conclusion of the message.
Representing himself, Kaus testified on his own behalf in the witness chair and, seated at a table before the judge, also questioned witnesses. Kaus said he couldn't afford an attorney and was filing a request for a restraining order because he felt threatened. Kaus said he is the face of the Minnesota Freedom Council, which has four members. Guy Green, who said he was a founding member of the Minnesota Freedom Council, was a witness for Kaus. Green said the Minnesota Freedom Council was involved in the voter fraud allegations, in candidate forums and political matters in the community.

In regard to the sound Kaus and Sharon Stene described as a gun cocking, Peterson testified he left the voice mail message from his office in the presence of his son and in the group home where weapons are not allowed. Peterson said the only mechanical noise he could imagine making the sound was from the movement of his office chair before he banged the phone down.

Peterson took the stand and said he did not intend to threaten to harm anyone and didn't have a firearm when he made the call. Peterson said he was referring to legal action for what he described as defamation.
Mallak said nothing the petitioners brought forward rose to the legal remedy of the restraining order. Mallak said there were no repeated instances and no adverse effect on Kaus.

Both sides agreed Kaus wasn't demoted, didn't lose pay or hours and that he later left his job at The Office Shop after more than 20 years voluntarily and was moving to Duluth. Johnson said it was out of the ordinary to go to a business without a service call first.

Peterson later went to The Office Shop twice in one day, buying file cabinets, and returning he said to talk to Johnson. Peterson said he gave Johnson secretary of state flyers regarding voting he assumed would end up in Kaus' hands. Kaus had the day off.

As he was leaving, Peterson said he passed a police officer who received a call that Peterson was causing a disturbance. Johnson said the officer told him he talked to Kaus. Johnson and the officer went to each staff member asking if Peterson had caused a disturbance. Johnson said all said no. 

Kaus told the court he felt this was a double standard to have Peterson at The Office Shop since he wasn't allowed in Peterson's office.

Peterson said he hasn't had contact with Kaus since last fall. He said he made the call and left the voice mail for the Stenes after he received a call from Fox News asking for a comment.

In the end, Kaus said he was an average person and he just wanted to be left alone, adding he wasn't after Peterson or Clark Lake Homes.

"I just want to go and not be disturbed," Kaus said.

Maus said the noise on the voice mail could be a lot of things and perhaps in Kaus' mind it is a gun shot, but there is not evidence to prove it and Maus said, after listening to the recording twice, he did not hear that well enough to know. As for talk about a lawsuit, Maus said that may make people feel threatened but it is not saying anyone is going to be harmed. A handwritten note with a question mark about defying the law on the copy of the secretary of state's flyer could be marginal, Maus said.

But Maus said he didn't think there would be problems in the future for Peterson or Kaus as they could agree to disagree and leave it at that.

"People are entitled to have a difference of opinion," Maus said. "That's what makes this country great."
With the voice mail part of the Stenes' request for the harassment restraining order as well, their hearing was much shorter in duration. Mallak made a motion to dismiss, which Maus granted.

After the judge said the legal requirement to meet restraining order wasn't met by the voice mail alone, Alan Stene said he wanted to present evidence during the hearing regarding statutes for his son's protection and regarding retaliation.

Sharon Stene grew emotional and wiped away tears as she told the judge the voice mail message scared her to death and no one seemed concerned about that.
"I know a threat," she said.

Maus said the law is complex and the Stenes may have a case, he wasn't saying they didn't, but the restraining order wasn't the venue to hear the retaliation claim.

"Sometimes what is legal is not right," Alan Stene said, adding they couldn't afford an attorney but thought they could present evidence at the hearing. He said there are ethical standards in question here. Maus said the dismissal Wednesday did not prohibit the Stenes from other legal action.

"I know what's right and wrong," Stene said, adding he didn't want to call the legal action multi-faceted because it's not a diamond. "It is about the ugliest thing I've ever seen in my life."

Stene said they understood Maus' decision and would look to a higher power for what will happen next. Whatever happened in court was going to be ordained, Stene said.

Maus said he hopes any other action will take place in a court of law and not between the individual parties before him at the opposing tables.

RENEE RICHARDSON may be reached at renee.richardson@brainerddispatch.com or 855-5852.